complicate the trial. Thayer's Preliminary Treatise on Evidence, pp. 266, 516, 517; State v. Kelly, 77 Conn. 266, 58 Atl. 705. So it is that trial courts are permitted to exercise a considerable measure of discretion in determining whether a given piece of testimony which may be logically probative of a fact in issue ought, in view of the considerations suggested and others recognized by the authorities, to be received. Thayer's Treatise, supra. And so it is that the admission of evidence like that here presented is not to be determined by an arbitrary rule, but by considerations which ought to influence the exercise by the court of a sound, but not unlimited or unreviewable, discretion, in view of all the circumstances of each case. It is unnecessary to pursue this subject further, to inquire whether there was in this case any exercise or abuse of this discretion, since, upon the new trial which must be granted, it is to be assumed that, in view of these observations, a proper course will be taken. There is error, and a new trial is granted. All concur.

1. When a statute is in part consistent with the Constitution and in part inconsistent with it, the former part may be held to be operative and not the latter, if they can be thus separated from each other and treated as independent provisions without doing violence to the apparent purpose of the Legislature.

[Ed. Note.-For cases in point, see vol. 44, Cent. Dig. Statutes, §§ 58-66.]

2. The charter of the city of New Haven, as last revised in 1899 (13 Sp. Laws, p. 437, § 165), provides that the judge and associate judge of the city court "shall be appointed by the General Assembly, and shall severally hold office for the term of two years from and after the first day of April following their appointment, and until their respective successors shall have duly qualified." Const. art. 5, § 3, declares that the judges of the Supreme Court of Errors, of the superior and inferior courts, and justices of the peace, shall be appointed by the General Assembly "in such manner as shall be by law prescribed," and that judges of inferior courts and justices of the peace "shall be appointed annually," the latter provision being modified by the twentieth amendment, adopted in 1876, declaring that "judges of the city courts and police courts shall be appointed for terms of two years. The records of the General Assembly show that since the adoption of the amendment it has on twelve occasions filled vacancies in city and police courts for the unexpired portion of the term, the appointee in several instances being at the same time also appointed for the full term next succeeding. In June, 1903, on the resignation of the judge of the city court, appointed for the term of two years from April 1, 1903, the General Assembly by resolution appointed defendant judge of the court "for the unexpired portion of the term ending April 1, 1905, and until his successor is

duly appointed and qualified." Defendant contended, as against relator, subsequently appointed for the term of two years from and after April 1, 1905, that the amendment preIcluded the General Assembly from making an appointment in any case for a term less than two years. Held, that the appointment was for the unexpired portion of defendant's predecessor's term.

3. If the limitation was beyond the power of the General Assembly, defendant had never been a de jure officer, his appointment being ineffectual from the first.

Case Reserved from Superior Court, New Haven County; William S. Case, Judge.

Information, in the nature of quo warranto, by the state, on the relation of Albert McC. Mathewson, against Edwin C. Dow, to determine defendant's title to the office of judge of the city court of New Haven, brought to and reserved by the superior court in New Haven county, Case, J., on a finding of facts, for the advice of the Supreme Court of Errors. Judgment for the state advised.

Edward H. Rogers, George D. Watrous, and Harry G. Day, for relator. E. P. Arvine, Henry G. Newton, Ward Church, and Harrison Hewitt, for defendant.

BALDWIN, J. The charter of the city of New Haven, as last revised in 1899, provides that the judge and associate judge of the city court "shall be appointed by the General Assembly, and shall severally hold office for the term of two years from and after the first day of April following their appointment and until their respective successors shall have duly qualified." 13 Sp. Laws, p. 437, § 165. In June, 1903, the judge of the court who had been appointed for the term of two years from April 1, 1903, resigned, and the General Assembly, on June 18, 1903, adopted the following resolution: "Resolution appointing Edwin C. Dow judge of the city court of New Haven for the unexpired portion of the term ending April 1, 1905.

"Resolved by this assembly: That Edwin C. Dow, of New Haven, be and he is hereby appointed judge of the city court of New Haven for the unexpired portion of the term ending April 1, 1905, and until his successor is duly appointed and qualified."

A commission was thereupon issued to him "to have and to hold said office for the unexpired portion of the term of two years from and after the first day of April, A. D. 1903, pursuant to the Constitution and laws of our said state," under which he qualified and has ever since claimed to act. In February, 1905, the General Assembly adopted another resolution "that Albert McC. Mathewson, of New Haven, be and he hereby is appointed judge of the city court of New Haven for the term of two years from and after the first day of April, 1905, and until his successor is duly appointed and qualified," and under this the relator has been commissioned accordingly, and has qualified.

If the General Assembly had power to lim

it the appointment of Judge Dow to the unexpired portion of the term for which his predecessor had been appointed, it plainly exercised the power, and he has no right to the office in question as against the relator. The Constitution (article 5, § 3) declares that the judges of the Supreme Court of Errors, of the superior and inferior courts, and justices of the peace shall be appointed by the General Assembly "in such manner as shall by law be prescribed," and that judges of inferior courts and justices of the peace "shall be appointed annually." The latter provision is modified by the twentieth amendment to the Constitution, adopted in 1876, which declares that "judges of the city courts and police courts shall be appointed for terms of two years." It is contended by the defendant, first, that the amendment precludes the General Assembly from making judicial appointments for the courts named, in any case, for a term less than two years; and, second, that the resolution appointing him judge of the city court was effectual as respects his appointment to the office, but ineffectual as respects the prescribed limitation of his term to what remained of that for which his predecessor had been commissioned. The first of the propositions thus asserted, if sound, would be of no avail to him unless the second is sound also. If it be so that the General Assembly had no right to appoint him for less than a full two years' term, yet it clearly intended to appoint him for no other; and if full effect is to be given to this intent, then, if ever anything more than a de facto officer, he certainly has been nothing more than that since April 1, 1905.

When a statute is in part consistent with the Constitution and in part inconsistent with it, the former part may be held to be operative, and not the latter, if they can be thus separated from each other and treated as independent provisions without doing violence to the apparent purpose of the Legislature. "But if they are so mutually connected with and dependent on each other, as conditions, considerations, or compensations for each other, as to warrant a belief that the Legislature intended them as a whole, and that, if all could not be carried into effect, the Legislature would not pass the residue independently, and some parts are unconstitutional, all the provisions which are thus dependent, conditional, or connected must fall with them." Warren v. Mayor of Charleston, 2 Gray (Mass.) 84, 89; State v. Wheeler, 25 Conn, 290, 299. The purpose of the statute now in question is declared in its title to have been the appointment of the defendant for the unexpired portion of his predecessor's term, and the words used in the resolution itself are well adapted to carry this purpose out. They are contained in a single sentence, and the limitation is so attached to the grant as to warrant, if not to compel, a belief that the Legislature intended them as a whole,

and would not have made an appointment which would break the regular succession of biennial terms, each ending on the 1st day of April. "Where part only of a statute is void, and the residue so dependent upon and connected with the void part that it cannot be presumed the Legislature would have passed one without the other, then both are void.” Neely v. State, 63 Tenn. 175, 184.

An inspection of the records of the General Assembly shows that since the ratification of the twentieth amendment it has, from 1880 to the present year, filled on twelve occasions vacancies in city and police courts for the unexpired portion of the term, and that in several of these instances the person appointed has been at the same time also appointed for the full term next succeeding. Considerable weight is justly due to this practical construction of the twentieth amendment, extending over a quarter of a century, and never questioned until by the present suit, as indicating the settled opinion of the General Assembly, tacitly acquiesced in by the people, that it is within the legislative discretion to appoint, in case of a vacancy in these local courts, for the unexpired portion of the term, even when it is accompanied by an additional appointment for a new and full term. Whether, however, this construction be sound or not, it is important as confirming the conclusion that the General Assembly meant, what the language which they used naturally indicates, to appoint the defendant only for the unexpired portion of his predecessor's term; and that to reject the limitation, while supporting the grant, would be to defeat, and not to carry out, the legislative will. Cooley on Constitutional Limitations (7th Ed.) 248, note.

This is not the case of an election by the people under rules prescribed by the Legislature which are consistent with the Constitution in calling for an election, but inconsistent with it in purporting to vary the term for which the person elected is to hold. If a statute of that nature may be deemed operative so far as it is consistent with the Constitution, and the residue rejected as void, it does not follow that the resolution now in question should be treated in the same way. In that the Legislature was only seeking to limit the scope and effect of its own action. In legislation of the other description the attempt made is to limit the scope and effect of action to be thereafter taken by the people in pursuance of their constitutional right. It might be that, at a popular election thus or dered, the votes cast would have the effect provided by the Constitution, notwithstanding any legislative provision to the contrary, and without avoiding the election. This would be, not because such was the intent of the Legislature, but because it was the mandate of the Constitution. The case at bar, on the other hand, hinges on the interpretation of the legislative will.

It follows that, if the limitation was be

yond the power of the General Assembly, the defendant, under the appointment as thus limited, has never been a de jure officer. It is therefore unnecessary to determine whether the limitation was or was not authorized by the Constitution as amended. If it was, the defendant's term expired on April 1, 1905; if it was not, his appointment was ineffectual from the 'first, should it be questioned in quo warranto proceedings.

The superior court is advised to render judgment for the state, and that the relator recover his costs. No costs in this court will be taxed for either party. The other Judges concurred.

(27 R. I. 137)

SCHULTZ v. GRIMWOOD et al. (Supreme Court of Rhode Island. April 12, 1905.)

PRINCIPAL AND SURETY-ATTACHMENT BONDRIGHT OF SURETY TO MAINTAIN REPLEVIN.

The surety in a bond given under Gen. Laws R. I. 1896, c. 253, § 18, to release an attachment of goods by virtue of such suretyship alone has no property in or right of possession which he can enforce by replevin against the vendee of his principal in the bond.

Replevin by Gustavus A. Schultz against Henry A. Grimwood and others. On demurrer to replication. Demurrer sustained. Argued before DUBOIS and BLODGETT,

JJ.

George T. Brown and Irving Champlin, for plaintiff. George H. Huddy, Jr., for defendants.

DUBOIS, J. This is an action of replevin. The defendants plead, first, the general issue; and, secondly, property in a third person. To the second plea the plaintiff replied, setting out a special title in himself to the goods and chattels replevied, acquired from one Edward O. Thurston, former owner and possessor thereof, in manner following: After attachment of the goods and chattels at the suit of a creditor of Thurston, the plaintiff became surety for him, at his request, upon a bond to dissolve the attachment, with condition to return them, after final judgment in the action, or pay the judgment; that in consideration of his signing the bond as aforesaid Thurston and the plaintiff agreed that, in case judgment should be rendered against Thurston, he would forthwith return the goods attached and released by the bond to the deputy of the sheriff, and that upon his failure to do so the plaintiff might take possession of the same to so return them; that afterwards judgment in the suit was rendered against Thurston and execution was issued thereon and placed for service with the deputy sheriff who made demand upon Thurston for payment of said judgment, which, being refused, he demanded of Thurston a return of the property attached, which was also refused; that the sheriff then demanded the

goods and chattels of the plaintiff, and he demanded them of Thurston for the purpose of returning them to the deputy sheriff in discharge of himself as surety on the bond, but Thurston refused to surrender the same to him. And the plaintiff avers that the property attached was in the possession of the defendants and that he demanded from them possession of the goods for the purpose of returning them to the deputy sheriff, which demand was refused by the defendants, whereupon he brought this suit. And the plaintiff avers that the defendants and Thurston had conspired to keep the property beyond the reach of the plaintiff to prevent his returning the same to the sheriff; without this that said goods and chattels were the property of the H. A. Grimwood Company, and not the property of the plaintiff. To this replication the defendants have demurred for six reasons, of which only the first two are substantial, viz.: First, "that said replication avers and shows no such general or special property or right to possession in or to the chattels replevied as to entitle him to maintain his said action against the defendants"; and, secondly, "that, for aught that appears by said replication and the record, said H. A. Grimwood Company had the general property and title and right to possession of the chattels replevied as averred in the defendants' plea thereof."

The following question arises out of the pleadings: Has the surety in a bond, given to release an attachment of goods and chattels, by virtue of such suretyship alone, any property in or right of possession to such goods and chattels which he can enforce by replevin against the vendee of his principal in the bond? It is stated by the parties, and we therefore assume, that the bond upon which the plaintiff is surety, like the bond referred to in Easton v. Ormsby, 18 R. I. 309, 27 Atl. 216, is a common law bond, and governed by that case. "The officer was not compelled to surrender the goods on being tendered such a bond, it not being in compliance with the statute; but by surrendering them, and accepting said bond in lien thereof as he did, he put it out of his power in any circumstances to compel their return to him, and thereby discharged his attachment thereon. Such surrender of the goods ipso facto works a dissolution of the attachment, and from that moment reinvests the defendant with the absolute control thereof." Id., 18 R. I. 315, 27 Atl. 218. Thurston, being thus vested with the absolute control of the goods, could dispose of them at his pleasure. His legal right to do so was not affected by his oral agreement to return the goods, or permit the plaintiff to do so, in case of final judgment against him. These were mere promises, for the breach of which an action might lie, but which did not in any way confer title or right of possession in the plaintiff as against a third person not a

obtained a judgment against the corporation, but likewise have levied or attempted to levy his execution thereon before he could proceed against the stockholder. The court did not decide that judgment against the corporation was unnecessary, and no such contention was made in the argument. This ground of demurrer is decisive of the whole case, and we need not consider the other objections, which affect the formal sufficiency of the complainant's statement of his case.

(27 R. I. 124)

In re HARKNESS.

(Supreme Court of Rhode Island. May 10,

1905.)

POOR DEBTORS-RIGHT TO TAKE OATH-JUSTICES OF DISTRICT COURT-JURISDICTION-REVIEW.

The jurisdiction given by Gen. Laws 1896, c. 260, § 17, to justices of the district courts, to determine when persons are entitled to take the poor debtor's oath, is not reviewable on a bill of exceptions.

Exceptions from Common Pleas Division. In the matter of the application of Charles A. Harkness, as unsuccessful defendant in an action for deceit, to take the poor debtor's oath. A justice of the district court decided that applicant was entitled to take the oath, and the plaintiff in the action for deceit brings exceptions. Dismissed.

Argued before DOUGLAS, C. J., and DUBOIS and BLODGETT, JJ.

Ezra K. Parker, for William C. Stanton. Herbert Almy, for Harkness.

PER CURIAM. It appears from the papers submitted that Charles A. Harkness was a person against whom final judgment had been rendered in the common pleas division in an action of deceit; that he obtained a citation from the justice of the Eighth Judicial District under the provisions of section 17, c. 260, of the General Laws of 1896, and that on the return day of said citation the said justice decided that he was entitled to take the poor debtor's oath, whereupon the plaintiff excepted, and now presents a supposed bill of exceptions for our consideration.

The jurisdiction given by chapter 260 to justices of the Supreme Court and to justices of district courts is not reviewable on a bill of exceptions. The proceedings upon a petition to be admitted to take the poor debtor's oath are supplemental or ancillary to suits at law, and no provision is made in the statutes for exception to the magistrate's decision therein. If the ordinary course of bringing a case before this court by bill of exceptions were applicable to these proceedings, a writ of prohibition, which was allowed in Taylor v. Bliss, 26 R. I. 16, 57

Atl. 939, would be unnecessary. If the oath was administered in this case, which the papers do not inform us, and the plaintiff conceives that the magistrate had no jurisdiction to entertain the application, he may treat it as a nullity, take out his execution, arrest the defendant, and, on application from him for a writ of habeas corpus, this court will have jurisdiction to determine the question. If the oath was not administered, he may apply for a writ of prohibition, as in the case of Taylor v. Bliss, supra.

This present proceeding must be dismissed.

(27 R. I. 134)

FUGERE v. COOK, City Treasurer. (Supreme Court of Rhode Island. May 17, 1905.)

MUNICIPAL CORPORATIONS-NEGLIGENCE-DAM

AGES-NOTICE-STATUTES.

Gen. Laws 1896, c. 36, § 15, gives an action for damages to any person receiving injuries by reason of any defect in a public highway; but, by section 16, the injured person must give a notice of the time, place, etc., of the injury, and by section 12, every person having any money due him from any city must present a notice of his claim, showing how it was incurred or contracted. Held, that there is no necessity for notice to the city under section 16 where the claim is by an owner of land abutting on a highway for damages by reason of the negligent delay of the city in constructing a sewer therein.

Action by Joseph L. Fugere against Samuel P. Cook, as city treasurer of the city of Woonsocket. Heard on demurrer to declaration. Demurrer overruled.

Argued before DOUGLAS, C. J., and DU. BOIS and JOHNSON, JJ.

Herbert L. Carpenter, for plaintiff. Erwin J. France, for defendant.

PER CURIAM. The provisions of Gen. Laws 1896, c. 36, §§ 15, 16, have no application in a case of this kind. This is not & case brought to recover compensation for bodily injury or damage to property by reason of defect, want of repair, or insufficient railing in or upon a public highway, causeway, or bridge, but is an action, brought by an owner of land, buildings, and place o business abutting upon a public highway, for damages to his business by reason of the negligent delay of the city of Woonsocket in constructing a sewer in said highway. There is no necessity in such a case for notice to the city under the terms of said section 16. A compliance with Gen. Laws 1896, c. 36, § 12, is sufficient. The second count of the declaration sufficiently avers that the blasting therein referred to was conducted by or in behalf of the city of Woonsocket. 10 Am. & Eng. Ency. L. (2d Ed.) 252, and cases cited.

The demurrer must therefore be overruled.